Ontario court orders redefinition of marriage

In a unanimous decision July 12, the Ontario Divisional Court ruled that the traditional understanding of marriage as between one man and one woman, to the exclusion of all others, is unconstitutional. The court gave the provincial government 24 months to bring legislation in line with the ruling to permit homosexual marriage. Reaction from religious and pro-family groups was swift and unequivocal: the judges were out-of-line in redefining marriage and usurping the power of legislatures.

The Ontario case stems from a legal challenge by a pair of homosexual couples who were "married" at a predominantly gay Toronto church in January 2001. Kevin Bourassa and Joe Varnell along with Elaine Vautour and Anne Vautour launched a challenge against the definition of marriage when officials for the Ontario government refused to register their "marriages."

The Ontario Divisional Court declared Canada's definition of marriage - the lawful and voluntary union of one man and one woman to the exclusion of all others - to be invalid. The justices claimed it to be a violation of homosexuals' Section 15 Charter rights which state, "Every individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination." Section 15 goes on to list what grounds discrimination cannot be based upon, such as race, religion, sex and age. It does not include sexual orientation.

The Ontario Divisional Court suspended the implementation of the decision for two years, as it urged Parliament to re-define marriage.

The Catholic Civil Rights League, an intervenor in the case as part of a broad interfaith coalition (as it was in similar applications brought in 2001 in British Columbia and Quebec), said that without any reference to safeguards for religious institutions, the decision "if allowed to stand, would engage religious denominations in potential litigation for the next generation in order to protect their most deeply held beliefs from further attack." CCRL vice president and lawyer Phil Horgan noted that the courts undertook a radical "paradigm shift in our culture" by re-defining marriage without consultation with the public and over the stated intentions of other courts and Parliament.

The Evangelical Fellowship of Canada, which was part of the same interfaith group as the CCRL, said it was "deeply disappointed with this decision," as it noted that the Ontario court is one of the first in the world to rule that constitutional protection of sexual orientation requires the redefinition of a fundamental institution such as marriage.

Janet Epp Buckingham, general legal counsel for the EFC, said that she is concerned with the possible effect of the decision on churches and other religious communities because the court did not grant any right of conscientious or religious objection to this new concept of same-sex marriage. Buckingham noted that evangelical Christians, and other religious adherents, believe marriage is a sacred covenant between a man and a woman before God, and that it was ordained by God. "If marriage is redefined in such a way, then it no longer represents this covenant. Our community may be forced to rethink its participation in state-recognized marriage."

Criticizing the judicial activism of the Ontario court, Derek Rogusky, director of research for Focus on the Family Canada, said re-defining marriage to include same-sex couples is a matter for Canadians and their elected leaders, not the courts, to decide. "It is fundamentally wrong for judges alone to decide the future of such a vital social institution as marriage," Rogusky says. "This is an issue for Parliament and the provincial legislatures to deal with, and even then there would need to be the fullest possible public debate."

Focus on the Family had intervened in the case as a member of the Association for Marriage and the Family, alongside REAL Women of Canada and the Canada Family Action Coalition.

The Court's decision stands in marked contrast to the October 2001, decision of Mr. Justice Ian Pitfield of the British Columbia Supreme Court, which upheld the traditional definition of marriage.

Justice Pitfield noted in his decision last year that Parliament cannot redefine marriage to include other relationships because heterosexual marriage was defined at the time of Confederation as being solely between a man and a woman.

The only way marriage can be re-defined, Justice Pitfield said, is through a constitutional amendment. Justice Pitfield also addressed the Charter challenge to the heterosexual recognition of marriage and found that it infringed the Section 15 rights of gays and lesbians, but that this was saved by Section 1, the general limitation clause.

The B.C. decision has been appealed and is expected to be heard by the province's Court of Appeal later this year or early next year.

The EFC's Buckingham said, "It is clear that the Ontario case must be appealed, because what we have with these two decisions is Parliament being told by the Ontario court to redefine marriage, and told by the British Columbia court that it cannot redefine marriage. Ultimately, we will need a ruling by the Supreme Court of Canada as to the institution of marriage."

At the time The Interim went to press, the federal justice minister had yet to indicate whether the federal government intended to appeal the decision. There is a two-week window to file an appeal.

Pro-family groups seem optimistic that they will prevail. Focus's Rogusky said, "This battle is far from over and it is far too soon for anyone to claim victory. This is just one decision of the many which are still to come as this issue makes its way slowly towards the Supreme Court of Canada."

Rogusky added that the Ontario decision did not address the "best arguments" made in favour of maintaining the current definition of marriage made by the Ontario attorney-general or the intervenors.